Big Fish, Small Fish and Sting Rays

Not that anyone paying even a modicum of attention is unaware that there’s a cool box around that mimics cell sites so that it picks up your cellular communications, colloquially referred to as the Sting Ray, but that law enforcement has been using it with reckless abandon and without judicial approval. Ah, good times.

The excuse proffered is that Harris Corp., maker of the cell site simulator, required a non-disclosure agreement of law enforcement, and you know how law enforcement feels so strongly about its duty to uphold the law.  Unfortunately, some judges haven’t gotten with the program, and compelled the disclosure of both the NDA and the technology, causing sad cop tears at the idea that the bad guys will learn about the tradecraft.

Bad news for the cops is good news for the bad dudes?  Ironically, yes, but not for the reason one might expect.  It’s not that the gangsters are busy pouring over the schematics of Sting Rays to figure out how to elude detection, but that the feds are so bent on keeping their spyware from judges and public scrutiny that they would rather cut criminals loose than reveal their voodoo.

Not only is the FBI actively attempting to stop the public from knowing about stingrays, it has also forced local law enforcement agencies to stay quiet even in court and during public hearings, too.

An FBI agreement, published for the first time in unredacted form on Tuesday, clearly demonstrates the full extent of the agency’s attempt to quash public disclosure of information about stingrays. The most egregious example of this is language showing that the FBI would rather have a criminal case be dropped to protect secrecy surrounding the stingray.

The idea of trading off accused criminals isn’t really a new thing.  One of the weapons in the criminal defense lawyers’ arsenal is representing the little fish at the end of a multi-defendant case, where all the big fishes have copped out and your guppy is the last one floating around the courtroom.  Will the feds burn their snitch just to get your puny defendant?

It’s a bit of a game, trying to figure out whether they hate your defendant enough to squander their “asset” on convicting your client.  Oftentimes, a confidential informant (which sounds far better than “rat”) will have information on, and access to, other, bigger, crimes, and to reveal that the guy is a CI is to lose any opportunity to use him the next time to infiltrate an alleged criminal organization.

You find out that being a hold-out paid off when the call comes, out of the blue, that the feds are going to nolle pros your client, even while telling you that they know he’s a mutt and will dog his every step for the rest of his life.  Yeah, yeah. Whatever. Will tomorrow be soon enough to dismiss?

But trading off a snitch for a low-level defendant seems like a fairly rational allocation of resources.  After all, if he’s good for another drug kingpin or organizational takedown, nailing some runner to the wall is hardly a good use of his talents.  Plus, if you have any mad cross-examination chops, there is always the chance that the snitch will blow the deal all around, admitting to lying through his teeth at every opportunity to get his own deal nailed down.

The Sting Ray, on the other hand, is the future, and the feds aren’t quite so willing to sell out their technological toys, even if it means that they put the very criminals they claim to need the simulator to nail back on the streets.  This isn’t merely an allocation of scarce resources, but a revelation that the very justification used to conceal their methods isn’t of sufficient law enforcement importance to justify pursuing a prosecution against a heinous criminal.

See how that circular reasoning flows?

And yet, the desire for secrecy appears to continue to trump the processes for which the Sting Ray exists.  Via Tim Cushing at Techdirt, out of Baltimore:

Det. Cabreja confirmed the ultra-restrictive terms of the FBI’s NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who’s asking for it.

Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation. 

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley. 

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.

There’s nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order.

To unmix this convoluted rhetoric, the point of the Sting Ray is to obtain evidence to be used in a court of law in the prosecution of a criminal.  Its use would require judicial approval, but to obtain judicial approval, the prosecution would be compelled to reveal that a Sting Ray was being used. That would open the door to the defense challenging the use of the Sting Ray in court, which would include disclosure of the details of the Sting Ray which law enforcement has determined should not be revealed at any cost.

So, the feds (and their local counterparts) use the Sting Ray without judicial approval, lie about how they came upon the information and dissemble by creating a fantasy story which they tell a judge under oath to be absolutely true, justifying both the lie and perjury by the need to conceal the use of the String Ray, all because they are serving truth and justice by using the trusted legal process to get criminals off the street to protect society. Whew.

And when they get called out for this bullshit, the alleged bad dude, who is so very evil that they need to lie and perjure themselves to conceal their weapon in the War on Crime, gets cut loose to go out and commit more of those very same, very evil crimes that justify these shenanigans in the first place, whether big fish or small fish, all to protect their beloved Sting Ray.

Somewhere in Washington, this makes sense to someone.

12 thoughts on “Big Fish, Small Fish and Sting Rays

  1. Patrick Maupin

    > Somewhere in Washington, this makes sense to someone.

    Well, the pieces all makes sense to lots of people. It makes sense to Harris to be able to leverage tech they developed for the military and sell it to be used in the “War On Terror.” It make sense to local law enforcement to be able to leverage tech they bought or were given for use in the “War On Terror” more broadly. And it makes perfect sense to the FBI to allow these local law enforcement offices to practice and become proficient with this tech, as long as the terrorists are not allowed to know how it works. Once they get their lies to the court straight so nobody ever knows it’s being used for anything other than catching terrorists, it will make perfect sense to you too, especially after Upton Sinclair explains it to you better than I can.

    But this particular legal problem only exists because of a technical problem — the cell phone network is horrendously insecure. Of course, that particular technical problem partly exists because of politics — there are all sorts of valid reasons why it’s too difficult to secure the phone network, and none of them have anything to do with removing one of law enforcement’s favorite tools or depriving Harris of a revenue stream. I’ve added them to your invisible list.

    As evidenced by an inquiry Congressman Alan Grayson made last year to the FCC, and the response from Chairman Tom Wheeler, many people in positions of power fervently want to believe that it is possible to make a network secure from snooping by terrorists and foreign governments while simultaneously having it remain perfectly transparent to domestic law enforcement, Santa Claus, and the tooth fairy.

      1. John Barleycorn

        Speaking of people wanting power…I hope Patrick knows that everybody needs to eat cheese everyday or the Tooth Fairy and Santa Clause cease to exist.

        So, here is a slice off the old block from one side of the wheel to enjoy with your Sunday brunch.

        Once the “front runner” emerges from the other side of the wheel freel free to cut out a face that suits.

        P.S. These “credibility” posts of yours should be collected and sewn into a paper sacks to be sold as tulip bulbs esteemed one. Nothing like enjoying a spring Sunday brunch outside looking over a hillside of blooming tulips. It instills so much optimisimum and hope.

        It looks like Sundays may be your new day.

        1. SHG Post author

          You know, it kinda pisses me off that more people click on the links in your comments than the links in my posts. Yes, today was a fabulous Spring day, and the Healey went for its first ride of 2015. It was spectacular.

          1. John Barleycorn

            Well, I hope you wore your bullet proof vest AND put on a front license plate. It’s a crazy out there these days even on a beautiful spring day.

            P.S. Speaking of links. Don’t forget, when you get to selling the URL, I am-a-buying. I am more convinced than ever after your post the other day that your audience is seriously under served in inadvertent link department.

            You still get to post anytime you want and to sweeten the pot how about 40% of the 80% of the accessories sold?

            Graduate school ain’t cheap and you gots-to start thinking about funding the world wide publicity tour for those books you are writing.

      2. Patrick Maupin

        > opening

        Hey, I’m avoiding real work here. This is serious business. Anyway, the police have nothing to worry about — the resolution of their wall-penetrating RADAR will be good enough to read lips before the phone network gets secured.

  2. anonymouse

    The cliche about LEO needing to think like a criminal to catch a criminal seems to be more and more inoperative. Today, it seems more LEO thinks they have to act like a criminal in order to snatch and/or frame/entrap one.

    1. Fubar

      Justice’s latest device is called “Sturgeon”.
      Looks just like a board certified surgeon.
      Suspect under the knife?
      Steals his organs and life.
      Then it sends a bill. Business will burgeon!

      1. David M.

        Pssh, Sturgeon is #outdated.
        Try Herring, it’s freshly created.
        It purses its lips
        then sends technical tips
        when it senses you just masturbated.

  3. Neil Dunn

    Thanks for this article. I can plug in any spying device for “Sting Ray” and change the alphabet soup agency name –>and now have the template you have provided to decode their objective/purpose/mission. One question: is your guppy = client in a catch 22 bind, particularly if he read and understood this article?

  4. anonymous coward

    The worst of it is that all this secrecy and illegality is pointless. All the smart criminals and terrorists already knew cell phones and satellite phones could be tracked before sting rays were in the news and used burner phones or removed the battery and SIM card when not using their phones.

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